What is the "H-1B Portability Rule?"

The portability rule for H-1B visa holders is described in the “2000 American Competitiveness in the 21st Century Act” or "AC21" for short. This states that the holder of an H-1B visa can change employers and commence work for a different employer on the same day that the transfer H-1B petition has been received by the UCIS from the employer who is new and has been filed on the H-1B holder’s behalf.

The H-1B holder has to be someone who has been legally allowed to enter the USA.

The employer must file a petition in relation to the new job prior to the expiration date of the stay of the transfer employee.

How an H-1B visa status holder can benefit from the H-1B portability rule

• If the alien’s previous and new employers were either cap-exempt or cap-subject.
• If the employee is transferring from a job that is cap-exempt job to another job that is cap-exempt and in this situation the worker may file an H-1B transfer in any time frame and start the new job with the new employer once the filing of the H-1B transfer has been completed.
• In the situation of a cap-subject worker engaging in a cap-exempt job the new job is not limited by the H-1B cap so the foreign worker can file the H-1B transfer when he or she wishes.
• In the situation of a worker who is cap-subject to another job that is cap-subject job as the foreign worker already has an H-1B number so no new number is required. The H-1B transfer can be filed at any time and the new job can commence once the transfer has been filed. A further situation is when a cap-exempt worker transfers to a cap-subject job. If the foreign worker’s job has come under the cap in the past 6 years and the worker wishes to leave his or her job with the first employer and begin employment with the new employer, under the portability rule, the worker may transfer to the new employment following approval of their petition to transfer by USCIS. There are other circumstances when the portability rule applies but the main ones have been outlined above.

The H-1B portability rule is there to be used to transfer and then work for a different employer but care has to be taken when using it as if a transfer petition is denied as it can be in some circumstances the worker may full out of permissible status and have to leave the US. 

To avoid this happening the safest way to not abuse the H-1B portability rule is by staying under H-1B status and apply for a transfer through the use of premium processing which attracts a higher fee but it means that the decision about the transfer has to be made within 15 days of the filing taking place.

If the H-1B holder or the employer is unable to wait because there is an urgent need for the worker’s services then the transfer petition has to be prepared in a timely manner to assure acceptance

Return to "The H-1B Visa" to learn more.